Opinion
Docket No. 16969.
Decided August 13, 1974.
Appeal from Kent, Stuart Hoffius, J. Submitted Division 3 June 3, 1974, at Grand Rapids. (Docket No. 16969.) Decided August 13, 1974.
William H. Johnson was convicted of obtaining by false pretenses personal property valued at more than $100. Defendant appeals. Reversed and remanded for new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, Donald A. Johnston, III, Chief Appellate Attorney, and David A. Dodge, Assistant Appellate Attorney, for the people.
Joseph F. Deeb, Jr., for defendant.
Defendant William Henry Johnson was convicted by a jury on January 3, 1973, of obtaining by false pretenses personal property valued at more than $100. MCLA 750.218; MSA 28.415. He was sentenced on February 15, 1973, to a prison term of from two to ten years and now appeals as of right.
Since defendant's allegations of error relate to the trial court's evidentiary rulings and instructions to the jury, a detailed recitation of the facts of this case is unnecessary to its disposition, and thus only those facts pertinent to our discussion of the issues will be presented.
Defendant contends that the trial court committed reversible error when it allowed the assistant prosecutor, over defense counsel's objection, to inquire into the facts comprising defendant's prior conviction of uttering and publishing.
On direct examination by his attorney, defendant admitted to a 1967 conviction of uttering and publishing. During cross-examination, the trial court overruled defense counsel's objection and allowed the assistant prosecutor to question defendant extensively concerning the factual basis for the 1967 conviction. During closing argument, the assistant prosecutor, in referring to the details of this prior conviction, stated:
"Another offense that involves misrepresenting facts, misrepresenting reality, holding out the check to be other than it was, namely something which would entitle him to payment. It was a flagrant forgery, that's all, and although he said the other checks involved were made out to him, those were after the first one, he did not recall what the name was on the first check."
Plaintiff asserts impeachment of defendant's credibility as an adequate ground for the admission of defendant's cross-examination testimony. We disagree, for it is well established that once a defendant admits on direct examination to a prior conviction, during cross-examination the prosecutor may not interrogate the defendant regarding the collateral facts comprising that prior conviction, where defense counsel has properly objected to such questioning. See People v Falkner, 389 Mich. 682; 209 N.W.2d 193 (1973); and People v Peabody, 37 Mich. App. 87; 194 N.W.2d 532 (1971).
Nor are we able to conclude that the erroneous admission of this testimony regarding the factual basis of defendant's prior conviction was harmless error. Rather, we feel it was prejudicial to the defendant. As we pointed out earlier, the assistant prosecutor during closing argument stressed the specifics of defendant's prior conviction in a manner calculated to encourage the jury to conclude that if defendant had defrauded someone in 1967 he must have also defrauded this complainant in 1972. It is true that defense counsel did not object to this part of the prosecutor's closing argument. However, we are of the opinion that a cautionary instruction could not have cured the error and, therefore, defense counsel's failure to object is not fatal to this appeal. People v Majette, 39 Mich. App. 35; 197 N.W.2d 78 (1972); People v Humphreys, 24 Mich. App. 411; 180 N.W.2d 328 (1970).
Defendant's second allegation of error is based upon the trial court's admission of a misdemeanor conviction for the purposes of impeachment. Upon cross-examination, defendant admitted a prior conviction for illegal possession of a starter pistol. Although defense counsel objected to the use of this conviction on the ground that it was irrelevant, the trial court permitted the inquiry. Defendant argues that the trial court committed reversible error. We agree.
In People v Osteen, 46 Mich. App. 409, 419-420; 208 N.W.2d 198 (1973), our Court, when dealing with this precise issue, stated:
"The prosecutor has no `right' to stand before the jury and recite defendant's conviction record. When admission is challenged he must offer reasonable grounds upon which the trial judge can justify his exercise of discretion in favor of admission. The dissimilarity between an alleged conviction and charge was held by the Court in People v Simard, 314 Mich. 624; 23 N.W.2d 106 (1946), to justify exclusion:
"`* * * The prosecution thus tried to show that defendant was guilty of a misdemeanor that had not the remotest connection with the crime charged and was in no way similar in character. * * * While much latitude is allowed in cross-examination to test credibility, the prosecutor cannot bring out independent issues involving other alleged crimes that are entirely dissimilar both in nature and motive and have nothing whatsoever to do with the issue involved. * * *'
"This proposition is no less applicable to defendant's prior convictions which are entirely dissimilar from the sale of heroin charge." See also People v Farrar, 36 Mich. App. 294; 193 N.W.2d 363 (1971), quoted with approval in Osteen, supra.
The admission of defendant's misdemeanor conviction in the instant case is inconsistent with the guidelines set forth in Osteen and Farrar, supra. Defendant's misdemeanor conviction is entirely dissimilar to the false pretenses charge. The trial court abused its discretion in admitting the challenged misdemeanor, and such abuse of discretion mandates reversal of defendant's conviction.
Defendant's final allegation of error relates to the question of defendant's alleged alibi defense. Defendant claims that our alibi statute is unconstitutional and that said statute does not apply to cases in which only the defendant himself proposes to give alibi testimony, as opposed to cases in which the defendant intends to call alibi witnesses to support his alibi defense. However, it is unnecessary for us to reach either the issues of the constitutionality of the above statute or the question of its application to the instant case, since the record herein reveals that the trial court's instruction on this subject was reversibly erroneous.
MCLA 768.20; MSA 28.1043.
Our Legislature has recently amended the provisions of our alibi statute, here challenged by defendant, to eliminate any questions as to their constitutionality. 1974 PA 63, effective May 1, 1974, now provides for reciprocal discovery. Therefore, it would serve no useful purpose for us to now consider the constitutionality of the former statute, where such consideration is not necessary to dispose of the present case.
In its charge, the trial court sua sponte instructed the jury on the subject of alibi as follows:
"Now, an alibi is a legitimate defense, and if it is true that the defendant was not at the place where the crime was committed, that should and would be a perfect defense, but in considering that type of defense it is necessary for you to take into consideration the facts, and it is your duty as jurors to examine carefully the evidence on that point. * * * If it is established that the defendant was not in a position so he could have committed the crime or could not have been there, of course, that would be an absolute defense * * *."
In People v Erb, 48 Mich. App. 622, 630; 211 N.W.2d 51 (1973), this Court enunciated the standard to be followed by trial courts when instructing on the question of alibi when we said:
"An instruction to the jury concerning the defense of alibi must clearly explain that this defense offers two avenues of relief for the defendant. First, if the alibi is established, a perfect defense has been shown and the defendant should accordingly be acquitted. Alternatively and, perhaps, more importantly, the instruction must clearly indicate that if any reasonable doubt exists as to the presence of the defendant at the scene of the crime then, also, the defendant should be acquitted. People v Virgil Brown, 15 Mich. App. 600, 605-606; 167 N.W.2d 107, 110 (1969); People v Loudenslager, 327 Mich. 718, 726; 42 N.W.2d 834, 837 (1950)." (Emphasis supplied.) See also People v Resh, 107 Mich. 251; 65 N.W. 99 (1895).
It is quite clear that the trial court's sua sponte instruction in this case did not comply with the standard set forth above. While the trial court did instruct the jury that if defendant's alibi defense were established it would constitute an absolute defense to the crime charged, it did not instruct in the alternative that if any reasonable doubt existed as to defendant's presence at the scene of the crime, then defendant was entitled to a verdict of acquittal. This omission constitutes reversible error. See People v McShan, 53 Mich. App. 407; 219 N.W.2d 792 (1974).
We have closely examined the record and briefs and have found no merit in defendant's remaining assignment of error.
Reversed and remanded for a new trial.
All concurred.